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State must protect and punish

That there is little connection between literacy and knowledge, and even less between knowledge and understanding, is eminently demonstrated in the farce of the current debate on the Criminal Law Amendment (CLA) Bill - popularly, the "new TADA". Since the Law Commission began to circulate its Draft, reams of the most uncontaminated nonsense have been written by some of what are regarded as the most 'eminent minds' of this unfortunate country.

Even as the initial wave of uninformed rhetoric began to recede, the National Human Rights Commission (NHRC) joined issue with a rather disingenuous argument: that the existing laws of the land are 'adequate', and no new law is needed. Over the last decade, in just J&K, more than 24,000 persons have lost their lives to terrorism. The 'adequate' laws of this land have succeeded, in this period, in securing the conviction of terrorists in just a single case. Ask anyone connected with law enforcement and counter-terrorism, and he will tell you that it is almost impossible to keep a known terrorist in custody, as the judiciary administers a turnstile bail system that releases most offenders almost as soon as they are produced before a magistrate. The NHRC, nevertheless, insists that the "solutions to tackle terrorism can be found under existing laws, if these are properly enforced and implemented."

The fact, however, is that existing laws are not "properly enforced and implemented", and have not been, through decades of strife in the Northeast, in Punjab, in J&K, and other in theatres of internal strife. Indeed, the record of criminal justice administration in general is deplorable. Under the circumstances, there can clearly be no hope of adequate and effective reform within the foreseeable future. With the very integrity and survival of India at stake, are we to simply sit back and say, unless the whole system is reformed, nothing can or should be done?

This is tantamount to arguing that, if our house is on fire, and the Fire Department is not responding, we should set about trying to reform the fire service, but should not, and must not, do anything to save our own burning home, or the lives of those trapped within it, by whatever improvised means as may be readily available. And this is the position taken by no less a body than the NHRC. I begin to wonder whether the legal fraternity in this country, residing in its ivory towers and its make believe world "beyond reasonable doubt", has entirely divested itself of all vestiges of common sense?

Such examples abound. One supposed 'human rights activist' described the CLA Bill as a 'sledgehammer to kill a fly'. The fly, in this metaphor, being terrorism - a phenomenon that has undermined the stability, even the very possibility, of freedom, of democracy, of civil governance and of the security of life, wherever its shadow has fallen. The 'sledgehammer' is a statute that seeks to rationalise the currently absurd judicial processes that make it impossible to bring an offender to book within any timeframe that could have relevance in a conflict that escalates from day to day.

I have even heard earnest - and manifestly ignorant - socialites bandwagonning on the anti-TADA platform, arguing that no law is ever directed against a specific crime. But every single law is.

I have heard, echoing again and again in this debate of delusion, the word "draconian" - like a magical mantra that can frighten off all appeals to reason, all images of the cruel realities of the situation on the ground, and the overwhelming inhumanity of the terror - distanced as it is from the drawing rooms and debating societies at Delhi. But the provisions of the CLA Bill are no more 'draconian' than many of the laws that already exist for other crimes. For a comparison, I would invite the attention of the passionately uninformed to the provisions of the Indian Penal Code on the offence of dacoity (Sections 390-402) which prescribe rigorous imprisonment for a term of as much as ten years even for making preparation to commit dacoity. Membership of a gang of dacoits is punishable with as much as imprisonment for life.

The strongest and only argument against the proposed CLA Bill is that the previous anti-terrorism legislation, TADA, was widely abused in States - prominently Gujarat and Maharashtra - that had no visible manifestation of terrorism. This was a consequence, essentially, of the 'overbreadth' of many of the clauses of that ill-drafted legislation. Unfortunately, when TADA was allowed to lapse, the baby was thrown out with the bathwater. Instead of narrowly redrafting and amending the clauses that lent themselves to abuse, the entire statute was discarded. In the six years since TADA lapsed, thousands of additional lives have been sacrificed to the scourge of terrorism, but the word does not exist in India's legal lexicon.

The obvious solution is to draft counter-terrorism legislation narrowly, and to ensure that it empowers the state to act strictly against those who are directly connected with or guilty of terrorist activities, and to prohibit and penalise its misuse against any secondary or innocent parties, or for partisan political ends.

Unfortunately, the Law Commission has substantially failed in this regard, and has drafted several clauses in the CLA Bill that can and will lend themselves to future abuse. Detailed and specific debates on such offending clauses - and not on the Bill in general - are necessary.

Some of the offensive provisions include those that seek to punish citizens, including members of the Press, for not disclosing information they may possess regarding terrorist activities. Another questionable area is the punishment of 'advocacy' of secessionist ideas. This has always been a counter-productive strategy, and advocacy - as opposed to incitement to crime - must be kept out of the scope of the law, despite the possible mischief it may do. The law against 'harbouring' of terrorists must also accommodate the ground realities, where such services are often coerced under threat of death - though, where the mischief is demonstrably intentional, the penalties need to be harsher even than those proposed. The CLA Bill does contain harsh penalties against the abuse of its provisions by the state - but it may be necessary to bring the political executive into the ambit of its penalties if the law is misused by State governments, as TADA was. (Ironically in this context, in the theatre of the absurd that is Punjab, most of the police officers and men who were dismissed by the police administration for human rights abuses during the period of terrorism, have been reinstated; others have joined various 'human rights' groupings and now go around protesting against the very offences with which they were themselves charged).

In redrafting the CLA Bill, the one paramount principle that should be kept in mind is: Where the state cannot protect, it must not seek to punish. Crucially, however, the clauses that demand re-examination are not integral to the legislation, and represent no more than careless drafting. Their rationalisation or exclusion would strengthen the legislation, even as it diminishes the possibilities of its abuse.

The debate on counter-terrorism legislation is currently occurring at a purely rhetorical plane, with no serious study, no respect for fact, and with a great deal of 'grandstanding' for a variety of motives - sometimes the half-understood tyranny of political correctness; often outright populism or a hunger for projection through the media; and in the case of the 'human rights' lobby, the imperatives of the market for funding. Most of those who are participating in this debate are doing enormous disservice to the nation and are, in doing this, empowering the nation's enemies for its dismemberment. It is essential that the discussions should be transferred to a more rational plane, and out of the artificial and distorted arena constructed by these "fellow travelers of terrorism".

(Published in The Pioneer, July 22, 2000)





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